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Having refused to recuse in an extraordinary decision last month, Justice Antonin Scalia will hear argument on Tuesday in a dispute over his friend Dick Cheney’s energy task force. The justice’s highly unusual memo explaining why he would not stand down has drawn sorely needed attention to the Supreme Court’s recusal practice. Scalia’s explanation is thus a step in the right direction. But it also shows just why the Court’s recusal policy needs an overhaul. Scalia’s memo makes clear that a justice is often not in the best position to determine whether his participation in a case raises an appearance of bias. Indeed, Scalia’s justification for staying on the case despite his January duck-hunting trip with the vice president reveals a major gap between the justice’s perception of his actions and the public’s perception. Despite this reality, the Court still holds to its long-standing policy of permitting each justice to decide on recusal motions without formal review by other justices or input from legal ethicists, who may be better positioned to determine when questions of impartiality arise. A CONFUSED ‘APPEARANCE’ The federal recusal statute, 28 U.S.C. �455(a), authorizes the removal of a judge from a case in two instances. A judge with an interest, financial or otherwise, that would render him biased, may be disqualified. Determining whether to recuse in such cases is relatively straightforward. The inquiry is a factual one, focusing on the judge’s connection with the litigants and his financial stake, if any, in the outcome of the litigation. A judge may also be recused where his “impartiality might reasonably be questioned.” In essence, if a reasonable person would think that the judge could not decide the case fairly, the judge should step away. It is this standard that formed the basis of the Sierra Club’s recusal motion seeking to remove Scalia in Cheney v. U.S. District Court for the District of Columbia. And it is this provision that has proved the most problematic for the Court to apply in high-profile cases. First, because the Court has no uniform legal standard or multi-judge review process for recusal petitions based on the appearance of impartiality, there is very little consistency in recusal decisions. Each justice has wide latitude to apply his own sense of how things “appear.” This has resulted in a remarkably idiosyncratic application of the appearance standard. In 1972, for example, then-Associate Justice William Rehnquist refused to recuse himself from Laird v. Tatum, although a few years earlier, as an assistant attorney general, he had testified before Congress defending the Nixon administration on a matter that constituted the precise issue before the Court in Laird. Although the appearance standard was not yet part of the federal recusal statute, it was already part of the Model Code of Judicial Conduct. In fact, Rehnquist’s decision to sit in the Laird case may have encouraged Congress to incorporate the appearance standard into the recusal statute two years later. By contrast, the late Justice Thurgood Marshall exercised an abundance of caution. For nearly 30 years after he had left the NAACP Legal Defense Fund, Marshall continued to recuse himself from cases involving the fund, even declining to participate in decisions to grant it permission to file amicus briefs. Nearly 30 years after Laird, Chief Justice Rehnquist refused to recuse himself from the federal government’s antitrust suit against Microsoft, even though his son served as Microsoft’s counsel in private antitrust matters. Yet Justices Scalia and Clarence Thomas recused themselves from a decision to deny certiorari in a case involving the convicted killer of the father of a 4th Circuit judge who is reportedly their close friend. In short, it is difficult to determine just what the Court thinks the appearance standard means. NO ONE COULD THINK THAT Perhaps more important, as Scalia’s discussion of the Cheney case reveals, the justices can be remarkably out of touch with how things “might appear” to reasonable people who do not sit on the high court. This should not be surprising. The justices are not average “reasonable people.” They are highly educated professionals working in an insular, privileged, and homogenous environment. Their perception of their own impartiality is strongly influenced by this narrow reality. For example, in his recusal decision, Scalia finds it unimaginable that a reasonable person would think that his friendship with the vice president would affect how he decides the case. He can’t imagine why the Sierra Club contends that Cheney’s “reputation and integrity are on the line.” This is just a “run of the mill” case, he says, not one that carries personal consequences for the vice president. Scalia concludes that “a reasonable observer who is informed of all the surrounding facts and circumstances” would not see any appearance of bias stemming from the duck-hunting trip. In fact, reasonably informed people know that Cheney is more than just a titular party in this case. The energy task force was his baby from its inception. Also close to Cheney’s heart is the belief that the executive branch has given up too much of its right to work in secret. Cheney’s refusal to provide information about whom the task force met with is a battle about the principle of executive secrecy or, some would say, privilege. That’s the issue at the core of the suit, and it’s an issue in which Cheney is deeply and passionately invested. The vice president’s strongly held views on secrecy are a pervasive theme of the Bush presidency. National Security Adviser Condoleezza Rice’s initial determination not to testify in public before the Sept. 11 commission was based largely on the administration’s insistence that the president’s decision-making process is not open to public scrutiny. And, of course, there’s a potentially more explosive issue for the vice president. As even Scalia admits in his memo, if the Court rules that the vice president must disclose the requested information and it is revealed that Cheney favored his old friends in the oil and gas industry in creating energy policy, the vice president’s reputation, integrity, and job may well be on the line. REMEMBER FLORIDA? Underlying all this concern about a duck-hunting trip is the lingering public distaste with the Court’s ideologically split decision in Bush v. Gore. Without question, that case represents a watershed in thinking about the appearance of bias among members of the Court. Bush v. Gore was rife with potential recusal issues. Scalia’s son Eugene, later appointed by George W. Bush to serve as solicitor for the Labor Department, was a partner at the law firm that represented candidate Bush. Bush had campaigned on the promise to appoint more justices like Scalia and Thomas, while Vice President Al Gore had strongly criticized their records. When Scalia took the unnecessary step of writing a concurrence in which he asserted that Bush would be irreparably damaged by continuing the recount, he further roiled the waters, even drawing criticism from prominent conservative legal scholars. Yet members of the Court seemed astonished to discover that a good percentage of the public and hundreds of reasonable lawyers questioned the impartiality of Bush v. Gore. After the decision, several justices used public appearances to stress that the Court’s decisions are made without considerations of politics. But these statements have done little to quell public uneasiness as to whether the Court can fairly decide cases involving this administration. The still-smoldering embers of concern about Bush v. Gore stoked the negative response to Scalia’s duck-hunting trip. These same concerns will keep alive questions about the Court’s impartiality � unless the Court takes meaningful steps to address them. TO BOW OUT BETTER Does Scalia’s decision to issue such a detailed explanation represent the Court’s acknowledgment that its recusal practice needs fixing? It would seem not. In the face of much public criticism, Rehnquist has stubbornly held to the position that the Court’s policy will remain unchanged. That’s too bad because now is precisely the time to rethink recusals. First, the Court must acknowledge that it needs a more transparent and coherent recusal practice, particularly in controversial, high-profile cases. Second, the Court must take concrete steps to bring greater uniformity and formality to its recusal process, including its substantive assessment of recusal motions. At the very least, the public needs to know that the high court’s recusal decisions are vetted by more than one justice. The justices might consider assigning themselves to a quarterly rotating panel to review recusal motions. Each motion would be considered by at least two nonaffected justices. Well-regarded legal ethicists might be appointed as “special masters” to advise the justices. Written decisions explaining the rationale for granting or denying recusal motions should be the norm, not the exception. Short of making real changes now, the Court could at least begin to re-examine its long-standing policy against recusal. In the past, some justices have worried about how recusals affect certiorari decisions, which require four votes. Others have suggested that if justices withdrew from cases more often, attorneys might start to use recusal motions strategically � that is, to take advantage of the fact that an eight-member Court can easily split 4-4, leaving the lower court’s decision in place. Whether these worries are substantial enough to overcome the risk of growing public concern about the Court’s impartiality is a question that deserves a close look by the Court, in consultation with the bar and legal ethics experts. Fifty years ago, the Supreme Court wrote that “justice must satisfy the appearance of justice.” Transparent and consistent procedures for determining whether and when the members of the Court should recuse themselves will promote both the appearance of justice in cases like the Cheney suit and the people’s confidence in the Court. Sherrilyn A. Ifill is an associate professor at the University of Maryland School of Law. Her article “Do Appearances Matter? Judicial Impartiality and the Supreme Court in Bush v. Gore” was published in the Maryland Law Review in 2002. She can be reached at [email protected].

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